# How would SCOTUS rule on California's Prop 8? With what consequences?

**URL:** <https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182>\
**Category:** Great Debates\
**Created:** [August 13, 2010, 6:28pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182 "2010-08-13T18:28:15Z")\
**Posts on this page:** 1\
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**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [August 21, 2010, 3:09pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/193 "2010-08-21T15:09:07Z")

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> [@Saint\_Cad](#):
>
> > [@Bricker](#):
> >
> > As well they should, since under rational basis analysis, that is a correct conclusion.
> > 
> > Nor would you, because under rational basis analysis we do not care if there happens to be a better or more efficient way of advancing the apparent state interest. The mere fact that there’s some better way of using marriage to encourage procreation does not have any relevance at all to rational basis analysis.
> 
> But you miss the point.
> 
> 1. How does banning SSM affect children if they CAN’T have children? Explain how the rationaal basis analysis is allowed to use the “Denying the Antecedent” fallacy:  
> Children should be born only to married couples  
> Gays can’t have children  
> Therefore Gays can’t be married

I miss no points.

Here is the actual reasoning:

State wishes to encourage and reward the conception of children  
State accomplishes this goal by creating a legal state called ‘marriage,’ limiting it to men and women, and giving tax and legal advantages to couples in that state

> [@](#):
>
> 1. I would think that if that were a state interest, that a state could force unmarried couples that got pregnant to get married. Would that be legal based on the rational basis test?

No, because the rational basis test would not be used.

> [@](#):
>
> 1. And if marriage is only to produce babies and SSM marriage is bad because they can’t have babies, then why did California used to have a law specifically allowing sterile people to get married provided they revealed it to their partner? It got taken out when the definition of marriage was rewritten.

Who cares?

For about the sixteenth bazillion time, you cannot attack a law under rational basis by asking, “Well, if that’s the reason, why don’t they do this other thing that is an even better way of advancing their interest?”

Stop doing that. It’s not part of the rational basis test. I have no idea why people continually return to asking that question, despite being told repeatedly that this is not how the test works. It’s in the quoted text right above: **we do not care if there happens to be a better or more efficient way of advancing the apparent state interest.** Can’t you see it sitting there, waiting to be read and understood?

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